IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT OWERRI
SUIT NO: NICN/YEN/87/2016
BEFORE HIS LORDSHIP HON.JUSTICE SALISU H. DANJIDDA
DATE: 12/10/2018
BETWEEN:
1.I HUA FRIDAY
2. OLU CHRIS IKULGHAN
3. O.M. ELISON
4. LONGJOHN DURO
5. NZEKWE ANNE
6.AMAIBINYE TARIGHA JOSEPH and 91 other members of Staff of the Ignatius Ajuru University of Education, Rumuolumeni, PortHarcourt whose names are set out in Schedule A attached herewith…………..CLAIMANTS/RESPONDENTS
AND
1. GOVERNOR OF RIVERS STATE OF NIGERIA
- ATTORNEY GENERAL OF RIVERS STATE OF NIGERIA
3.IGNATIUS AJURU UNIVERSITY
OF EDUCATION………………………………………DEFENDANTS/APPLICANTS
REPRESENTATION:
D.O. OKORO for the Claimants/respondents
Patrick Enebeli (PSC) Rivers State Ministry of Justice for the 1st and 2nd
Defendants/Applicants
3rd Defendant unrepresented
RULING
This ruling is predicted on an application filed by the Ist and 2nd defendants. The application was filed on on 11/7.2018 and brought pursuant to order 64 rule 8(1) of the Rules of this Hon. Court, 2017. The application is seeking for the following orders;
1. An order staying of execution and or enforcement of the Judgement of this Honorable Court delivered on the 13th day of June, 2018 pending the hearing and determination of the appeal against the said judgement.
- And for such further order or other orders as this Honorable court may deem fit to make in the circumstances.
The application is supported by a 12 paragraph affidavit deposed to by one Lebatom Fii, Assistant Executive Officer attached to the office of the Honorable Attorney General, Rivers state. A notice of appeal is attached to the affidavit and marked as Exhibit “A”. The application is also accompanied by a written address wherein counsel to the Applicants raised one issue for determination which reads thus;
” Whether 1st and 2nd Defendants/Applicants have made out a good case for the grant of the Order for stay of execution of the judgement of this court delivered on the 13th day of June, 2018 pending the determination of the 1st and 2nd Defendants/Applicants’ appeal?
In arguing this issue, Counsel submitted that this is an appropriate case for the grant of an order of stay of execution of the judgement and further raised subsidiary issues for determination which are:
“a. Have the applicants demonstrated a clear intention to exercise their constitutional right of appeal?
- Does the Notice of appeal filed by the applicants disclose substantial and arguable grounds of appeal?
- Have the applicants shown the existence of special and exceptional circumstances for stay of execution?”
Counsel for the applicants referred the court to the following cases;
Owens Bank Nig. Plc. V Olatunji (1999) NWLR (Pt. 634) , 218, Okement Nig. Ltd V NDIC (2003) NWLR (Pt. 814) 192, Vaswani Trading co. V Savalak and Co. (172) 12 SC 77.
On the 1st subsidiary issue, Counsel submitted that the applicants have demonstrated a clear intention to exercise their constitutional right of appeal by filing Exhibit “A” which is the Notice of appeal and have taken further steps to begin compilation and transmission of the record of appeal. Applicants cited the case of NDLEA V Okorududu (1997) NWLR (Pt. 492) 222 at 243.
Counsel submitted that the applicants have gone beyond giving an undertaking to file a Notice of appeal without delay and have taken several steps to exercise their constitutional right by filing the Notice of appeal. Counsel urged the court to resolve the 1st subsidiary issue in favour of the applicants.
On the 2nd subsidiary issue, Counsel argued that the Notice of appeal filed raises substantial and arguable grounds of appeal, The grounds of appeal in the Notice of appeal challenges the finding of the court relating to the court’s jurisdiction to entertain the matter and the capacity of the Claimants.
On the 3rd subsidiary issue, counsel submitted that the applicants have shown the existence of special and exceptional circumstances warranting the grant of an order for stay of proceedings and enforcement of the judgement of the court.
Counsel mentioned the conditions that constitute exceptional circumstances and argued that all that the applicants have to show and prove is the existence of any one of the conditions. Counsel cited the cases of Vaswani V Salavak(Supra), Balogun V Balogun (1996) 1 ANLR, 349, Nwabueze V Nwosu (1988) NWLR (Pt. 257), 269.
Counsel also submitted that applicants’ grounds of appeal raise recondite point of law. He further pointed out that in paragraphs 7-10 of the applicants’ application, the refusal of the application will generally provide a situation where what ever happens to the case and in particular if the applicants succeed at the appellate court, there could be no return to status quo.
Applicants argued that the balance of convenience is in their favour because they have pursued their constitutional right to a logical conclusion. They referred the court to the case of SPDC Company Nig. Ltd V Mrs. Queen (2006) NWLR (Pt.1007) 1
Finally, applicants submitted that they have made out a case for the grant of the order of stay of execution.
Upon being served with the application, Claimants/Respondents in their opposition filed a 10 paragraph counter affidavit and a written address.
Claimants averred in their counter affidavit that the depositions in paragraph 5,6,7,8,9,10 and 11 of the Applicants affidavit are not true. They stated that apart from filing a Notice of appeal, the Applicants have not taken any steps towards the compilation and transmission of the record of appeal to the court of appeal. That the Applicants’ purported Notice of appeal does not have any chance of success at the appellate court as the grounds of appeal are not recondite and weighty. That the Applicants did not disclose sufficient facts as required under the law to enable the court to exercise its equitable jurisdiction.
Claimants in their written address raised one issue for determination which reads as follows;
“Whether the Applicants have established special or exceptional circumstances to warrant the grant of their application for stay of execution? ”
Counsel submitted that stay of execution is a discretionary remedy and the guiding principle in applying for a stay of execution of a judgement is for the Applicants to show substantial reason or special/exceptional circumstances to warrant the deprivation of the successful party of the fruits of his judgement.
Counsel further submitted that a discretion that is biased in favour of an Application for stay of execution but which does not adequately take into account the Respondent’s equal right to justice, is a discretion that has not been judicially and judiciously exercised. In support of that, Counsel cited the case of Okafor V Nnaife (1987 NWLR (Pt.64) 129.
Counsel contended that the mere fact that an applicant has a pending appeal is not sufficient to sustain an application for stay of execution. This is because an application for stay of execution should not be used as substitute for obtaining the judgement which the trial court has denied the applicant. See Graseg Nig.Ltd V R.T.T.B.C. (2012) NWLR (Pt. 1316) 168.
It is the contention of counsel that an unsuccessful party praying for an order of stay of execution must disclose from the supporting affidavit that the grounds of appeal are not only substantial, cogent or arguable but that they raised a recondite points of law and the Applicants have woefully failed to show this in their Exhibit “A”.
It was also argued by the Claimants that stay of execution cannot be granted in respect of a declaratory judgement. Applicants cited the cases of SPDCN Ltd V Amadi (2011) NWLR (Pt.1267) 157, Aje Printing Nig Ltd V Ekiti L.G.A. (2009) NWLR (Pt. 1141) 512 and Chukwu V Onyia (1990) NWLR (Pt.130) 80.
Claimants further argued that in an application for stay of execution of a monetary judgement, there is a burden on the applicant to satisfy the court by placing a complete and accurate account and description of all the applicants’ income, assets, interests and properties as well his obligation and liabilities. See Morison Industries PLC V CPL Industries Ltd (2009) NWLR (Pt. 1169) 119.
In conclusion, Counsel to the Claimants urged the court to dismiss the application with N100,000 cost in favor of the judgement creditors as the application is not only lacking in merit but it is frivolous and baseless.
COURT’S DECISION
I have considered this application as well as the written addresses of the parties and wish to state that the issue for determination in this case is whether a stay of execution should be granted in the circumstances of this case?
In determining this, I wish to refer to section 47 of the National Industrial court Act, 2006 and order 64 of the rules of this of this Honorable court, 2017.
Section 47 of the National Industrial Act, 2006 provides as follows;
” Where permitted by this Act, or any other Act of the National Assembly, an appeal to the court of appeal from the decision of the court shall not operate as a stay of execution but the court may order a stay of execution either conditionally or upon the performance of such conditions as may be imposed in accordance with the rules of the court”
Order 64(8) of the rules of this court provides as follows;
“(1) An application made to the court for a stay of execution or proceedings under any judgement or decision appealed against shall be made by motion on notice supported by affidavit setting forth the grounds upon which stay of execution or proceedings is sought.
(2). Notwithstanding anything to the contrary, mere filing of application for stay shall not operate as stay of proceedings or execution.
(3). Furthermore, the mere filing of an application simplicita shall not be sufficient for the court to grant a—
(a) stay of execution of the judgement of the court; or
(b). stay of proceedings before the court.
Provided that where an appeal has been filed , and all records of proceedings have been transmitted and an appeal has been entered; that is to say the appeal has been issued a number, the court may on sufficient grounds stay the execution of the judgement or of the proceedings upon which the appeal has been entered.
Provided further that in an application seeking for the stay of execution of the judgement of the court pending appeal, where an appeal has been entered in line with the provisions of this Order, the court may stay the execution of the judgement on the condition that the judgement debt (where the issue is monetary) is paid into an interest yielding account with the name “The Chief Registrar, National Industrial Court of Nigeria” pending the hearing and determination of the appeal.
Order 64(9) provides thus;
“An applicant for stay of execution of a judgement or for stay of proceedings under this order shall compile the records of appeal within twenty one (21) days from the date of filing a notice of appeal and where the record is not so compiled, the respondent may apply to strike out the application or discharge the order where already granted.”
Order 64(13)(2) provides thus;
“Where a party is dissatisfied with the decision of the court and seeks to appeal to the court of appeal, such a party shall in the party’s application to the court for stay of execution of the judgement or Order:
(a). File a notice of appeal;
(b). Pay for the compilation of the record of proceedings;
(c). Exhibit the certified true copy of the judgement or order the party is appealing against;
(d). Exhibit evidence that the appeal has been entered in line with the appropriate rules or the practice Direction of the court of appeal and that there is valid appeal before the court of appeal; and (e) Exhibit evidence that leave has been granted by the court of appeal, where leave is required either by law or by the court of appeal.
(3) Where all the requirements in sub-rule 2 have been satisfied, the court may grant or refuse to grant the application for stay of execution of the order or judgement of the court after taking into consideration the provisions of section 47 of the Act”
It is clear from the above that an application for stay of execution is not granted as a matter of course or routine. The courts have laid down guiding principles which are to be taken into account in considering the grant or refusal of the application for stay of execution. In Olojede V Olaleye (2010) NWLR (Pt. 1183) 41, the court of appeal held that:-
“An application for stay of execution and or injunction pending Appeal calls for judicial and judicious exercise of court discretion. An applicant seeking an order or injunction or stay of execution pending appeal must furnish the court with special and exceptional reasons why a successful party should be deprived, though temporarily, of the enjoyment of the fruit of his judgement. The applicant has to show that the balance of justice is in his favour and that there are Strong and arguable grounds of appeal which are not frivolous, upon which the application is predicted.”
In Olunloyo V Adeniran (2001) NWLR (Pt.724) 699, the supreme court held that:-
” A stay of execution will only be granted if and if the court is satisfied that there are special and or exceptional circumstances to warrant doing so. This is because the judgement of the court is presumed to be correct and rightly made until contrary is proved or established. The court will not therefore make a practice of depriving a successful litigant of the fruits of his/her success.”
In NNPC V BCE Consulting Engineers (2004) NWLR (Pt. 858), 484, it was held that an important or recondite point if law should not per se warrant a stay of execution unless it also produces a special circumstances.
In the instance case, the applicants have not been able to show to the court the exceptional circumstances which indicate that the balance of justice weighed in favour of the grant of the stay of execution. Neither have applicants displayed how the refusal of the application will be unjust and inequitable nor are the applicants able to present credible facts indicating that the Court’s refusal of a stay will deprive it of the means of prosecuting the appeal.
It is crystal clear by the provisions of order 64 particularly rules 8, 9 and 13 that, it is the duty of the applicants in the instant case to compile the records of appeal within 21 days from the date of filing the notice of appeal and where the record is not so compiled, the respondent may apply to strike out the application or discharge the order where already granted. In Ngozi V Governor of Imo State (unreported ruling in Suit No. NICN/EN//01/2012 delivered on 7/11/2012, this court refused an application for stay of proceedings on the ground that the applicant did not compile the record of appeal within 21 days of filing the notice of appeal as required by the rules of the court.
It is also clear from the said provisions that mere filing an application for stay does not suffice, but the applicant shall ensure that the appeal is filed and entered and all records of proceedings compiled and transmitted to the court of appeal.
I observe that the applicants in the instant case filed their appeal on the 13/6/2018 but up to the time of taking this application ie 25/9/2018 there is no record that has been compiled and transmitted. What the applicants only averred in paragraph 5 of their affidavit in support of their application is that they have taken further steps to begin the compilation and transmission of the record of appeal. However this mere statement is not sufficient to prove that the applicants have compiled and transmitted the record of appeal. The applicants should have gone further to request for the compilation and pay for same as provided by Order 64(13)(2). I find that mere demonstration of an intention to exercise one’s right of appeal is not sufficient to warrant granting an application for stay of execution.
Considering the above, coupled with the fact that the applicants in the instant case have not disclosed sufficient facts in their affidavit in support of their application to warrant granting this application in their favour, the application is hereby refused and consequently dismissed.
Ruling is entered accordingly and I make no order as to cost.
HON. JUSTICE SALISU HAMISU DANJIDDA
JUDGE
